Two-Thirds of Supreme Court Justices Okay With Defendant Going To Prison For A Crime He Didn’t Commit

Reason’s invaluable Hit and Run has a blog post about Jones vs. United States, a crack cocaine sentencing case. The Supreme Court has declined to hear the case and, in what is described as “a rare dissent”, Scalia writes a dissent saying, effectively, “what the hell? We *SHOULD* hear this case!” Read his dissent here. I suppose what makes this interesting is that he’s joined by both Thomas and Ginsburg. So my question: how is Scalia not 100% right on this one?

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Interesting… It appears there’s even a little court history/drama to the dissent suggesting that this is a known issue that has been discussed among the justices. I wonder what the counter-position would be.

The present petition presents the nonhypothetical case the Court claimed to have been waiting for. And it is a particularly appealing case, because not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense. Petitioners were convicted of distributing drugs, but acquitted of conspiring to distribute drugs. The sentencing judge found that petitioners had engaged in the conspiracy of which the jury acquitted them. Report

I’m not surprised that the two Justices who have actually bothered to read the Bill of Rights came to the conclusion they did and I’m not particularly surprised that Ginsburg reached the conclusion that she did, being all liberal and whatnot… but I’m pretty much flabbergasted that they couldn’t get one other person to agree that, hey, we need to at least *HEAR* this case.Report

Ya’ know, some of us evil social democrats would argue Ginsburg is the last liberal left on the Court and it’s not surprising that relative moderates or centrists like Sotomayer or Kagan would be OK with the courts ruling however they want.Report

Eh, social democracy’s big concern isn’t due process. Not that Soc Dems don’t care at all about it, but it’s not an issue on which Soc Dems are distinguishable from standard libs, neolibs or libertarians, or–apparently–Scalia.Report

I’m not a lawyer yet (getting sworn in on Friday), but here’s how I understand the opposing view.

Basically, the sixth amendment does not allow a judge to impose a sentence longer than the statutory maximum of the crime of conviction based on a fact or facts not found by a jury beyond a reasonable doubt. From my quick skim of the Gov’s brief, these D’s were convicted of charges that carried extremely long terms (40 years in Ball’s case). Once convicted the judge uses a number of factors to come up with a sentencing range with the maximum and minimum years set by statute.

The judge in this case found by a preponderance of the evidence that the three D’s had engaged in a conspiracy to distribute crack–a fact the jury acquitted on. This fact raised, probably significantly, the sentencing range these D’s faced. But, and this is the key point, it was not raised above the maximum sentence for which the D’s were convicted. Because the sentence was not above the statutory maximum there was no constitutional violation.

Any actual lawyer (or non-lawyer) is free to correct based on superior legal experience or having actually done more than skim the brief.Report

Second, this kind of bothers me (and you didn’t say whether you agreed or not, so this isn’t necessarily a criticism of a position you’ve taken):

The judge in this case found by a preponderance of the evidence that the three D’s had engaged in a conspiracy to distribute crack–a fact the jury acquitted on. This fact raised, probably significantly, the sentencing range these D’s faced. But, and this is the key point, it was not raised above the maximum sentence for which the D’s were convicted. Because the sentence was not above the statutory maximum there was no constitutional violation.

If the judge actually admits that he bases his sentencing on the fact he “found” the defendants had committed a crime they were accused of, and uses that “finding” as part of his sentencing, that seems to me a clear sign he’s punishing them for something they were acquitted of. And to me that seems wrong. I understand that the judge had the discretion to sentence as long as the sentence fell below the maximum, but I’d suggest that certain reasons for exercising that discretion ought to be prohibited, and among those is a “finding” of fact of which the defendants had been cleared. I suppose that in practice, all this rule would do is encourage them to cite some other reason, or no reason, for the sentence they impose.

I do have another question, though. Why do you (or why does the judge) refer to a “preponderance of evidence” standard when it comes to sentencing? Is that common? Guilt or innocence determined by a “reasonable doubt” standard, but sentencing by a “preponderance” standard?Report

The use of preponderance of the evidence is well established in sentencing. And, while I’ll admit that it might seem unfair if not unconstitutional, it does make some sense in the context of how we sentence people convicted of crimes. So, once someone is convicted both sides are going to present evidence on various aggravating and mitigating factors which move the sentence range up or down within the statutory max and min (I should also point out that (IIRC) judges have the discretion to not use the sentencing guidelines). Here were talking about things like is the D repentant, was he under duress, is this a first offense, etc. And, on the other side, was a gun used, did the D act cruelly or maliciously, past crimes, etc. What I’m trying to get at, is that it would be difficult to deal with these factors under a reasonable doubt standard, or to use reasonable doubt only for aggravating factors.

Generally, I don’t have a problem with this. Preponderance just means more probable than not, while reasonable doubt is a very high bar to clear. This would seem to present a pretty good example of how these standards play out. The DOJ proved that it was more probable than not that a conspiracy to distribute crack existed–but could not prove it beyond a reasonable doubt.

Finally, I also side with the dissent here, in that I think a judge found fact can be used to impose a sentence that is unreasonable in light of the crime and therefore unconstitutional. Also, IIRC, Scalia (and maybe Thomas) were not a fan of a review of sentences for reasonableness. So, this might be Scalia and Thomas trying to undercut that particular holding of Booker (?).Report

It strikes me as monstrous that people be sentenced for not the crimes they were convicted of but the crimes they were convicted of *AND* acquitted of.

We’re not even talking about a hung jury here. We’re not talking about procedural irregularities. We’re talking about a crime that the guys were found not guilty by a jury and that crime was used to hit the criminals anyway.

How is this not a violation of the various emanations from penumbras that come from a “trial by jury”?

All that to say: I don’t understand the counter-argument. It’s not even that the judge just hit them with the max that the crime allowed (as bad as that would be). He hit them with something under the max and said that he did this because, whatever the jury thought, he knew those fellers were guilty.

Which strikes me as impeachable on its face, without even getting into the underlying constitutional issues which, still, strike me as cut and dried.Report

Jb, if I’m understanding what going on correctly (big honking if), the crime they were convicted of, ‘distribution of crack cocaine’ has statutorily allowed sentencing enhancements which, based on the body of case law, can entirely be determined by a judge on a preponderance of evidence standard (one of which is having a pattern of activity resembling classic gang activity). Also, like the pirate code, all of the sentencing language in the statutes are ‘guidelines’ versus actual (mandatory) rules. So a judge is allowed to proverbial throw a book at someone as long as the judge doesn’t go beyond a statutory maximum, which the government claims and the appeals court found that the trial judge did not.

There are two oolies to this case which I thought of, but I’m not sure how much bearing they have. The first is that this crime was committed in Washington, DC, which makes it literally a federal case from the get go. I wonder if a case that started in a state court would have found cert as it would have been a more broadly applicable case.

The second is that, ironically, the only political capital this administration has spent on criminal justice reform is getting rid of the disparities in crack cocaine sentencing. I’m not sure if that statutory language which is figuratively hanging these guys out to dry (who, by the way, I don’t think anyone thinks are ‘good’ people) is a peculiarity of crack cocaine laws, but it wouldn’t surprise me.Report

So, a few points. Being found not guilty only means that the jury had reasonable doubts about guilt, not that they didn’t do it, and not that there was not a sizable amount of evidence that they did do it. Said another way, the jury did not say that they did not engage in a conspiracy to distribute crack, it only said they had a reasonable doubt about such conspiracy.

Next, they weren’t sentenced for the crime of conspiracy to distribute crack, they were sentenced for the crime of distributing crack, and the conspiracy was used as a factor in their sentencing. If one of the D’s could have shown that he only sold crack because of some duress he was under, or that he left the gang and became a model citizen between his arrest and conviction, then the judge could have used those factors to lower the sentence he would have received.

The problem here is our drug laws–not (really) the burden of proof for sentencing factors.Report

The reasoning is really, really important here, though. If the sentence guidelines say between X and Y years and the judge says “you were found guilty of the crime, the sentencing guidelines say between X and Y, you guys are getting Y, may God have mercy on your souls”, that’d be bullshit but there isn’t really an constitutional argument against that (well, without getting into whether sentencing guidelines are violations of the concept of separation of powers but that’s another post).

As it is, the judge said “you were found guilty of a crime that I’d normally give somewhere around X, but since you also did this thing you were acquitted of, I’m instead going to give you Y”, the judge has officially given a reason that, it strikes me, is downright unconstitutional.

But… you’re right. The crack cocaine laws passed in the 1980’s were pretty crazy. This could be an artifact of those laws that wouldn’t necessarily bleed over into other parts of the law… this still strikes me as something that could easily start bleeding over into other parts of the law tomorrow, though.Report

The thing to keep in mind, if I’m understanding the system correctly, is that the cert battle *isn’t* over whether or not anyone’s 6th amendment rights were violated or not. The battle is over whether or not existing case law and Supreme and other court law is clear or not. The government’s case, and the appeals court ruling, has little to do with the rights of Jones et al; it’s about whether or not existing precedent is clear and that the trial judge’s decision comports with it. Scalia (and the other two) said ‘no it isn’t’ while the government listed something like a dozen cases (footnote 3) ‘yes it is’. (and it’s likely imo, that Scalia took time to make a dissent because the government called out Scalia in one of its cites (Rita v US)).Report

Ya’ll don’t get all excited about Scalia and his understanding of what justice means. He doesn’t give a crap about justice. He cares about process, which is why I suspect he wanted to take this case. There was a famous case of a death row inmate in Texas who was innocent (coerced confession, inadequate council, DA hiding evidence, mentally retarded, DNA evidence showed he didn’t commit the crime, confession from the actual killer) and Scalia voted to execute him because he felt the judicial process had been followed. So he’s no protector of justice for the wrongfully convicted.

Not sure why the others didn’t want to take the case, but I suspect the more liberal justices knew that they would lose in the full court and didn’t want to set a precedent.Report

Not sure why the others didn’t want to take the case, but I suspect the more liberal justices knew that they would lose in the full court and didn’t want to set a precedent.

I had thought of that possibility, and in the end you might very well be right. But how likely is it? It seems, at least from the dissent, that Scalia would have sided with the “liberal” position. (Maybe Thomas, too? Or perhaps he would’ve granted cert. because he wanted the decision to go the other way?) Would Ginsburg + Scalia have that much of a difficult time finding three others? I’m not enough of a court watcher to know for sure. So again, maybe you’re right.Report

I have no idea why they denied cert in this case. I am a long-time court watcher and I know that the reasons are often unfathomable to this non-lawyer’s way of thinking. I was surprised they denied cert in the recent spate of marriage equality cases.

I do know that the reasons for denying cert often have to do with arcane legal hocus-pocus. I don’t know all the legal issues here. It seems simple, but it may not be. I am a big fan of Ginsburg (who has really come into her own lately as a judicial force) and if she was for hearing the case, that certainly gives me pause.

But I do know that Scalia (and his other half Thomas) are no friends of convicted criminals so I have to be suspect of his reasons for hearing this. His dissent can be read both ways but certainly he seems in favor of settling the issue. As he states, it has been an issue for many years. Perhaps the other justices didn’t feel this was the proper case to resolve the legal issues? For who knows what reasons.

I just know enough to be wary of Scalia, and any notion that he is FOR justice instead of his own Catholic theocratic agenda is just a sad, sad laugh.Report

From a very limited amount of research, it seems like Scalia is not a fan of the substantially unreasonable standard for reviewing sentencing decisions, and would likely vote to get rid of it. I think the last line of his dissent gives it away.Report

James, James, James. What is with all the grammatically incorrect name calling? I would say that is beneath you, but I don’t know you, as you don’t know me. So calling me a penny-ante (you need the hyphen) partisan seems a stretch.

Tsk, tsk. Name calling, James! Is that what this conversation has become?

But let us see shall we? I said that Scalia was evil. Other words (that would be synonyms) for evil: wrong, dishonorable, and corrupt. I think those words pretty much sum up Scalia. It has nothing to do with my politics (of which you have no idea, James), and everything to do with Scalia’s need to enforce his particular brand theocratic politics on the US. And again, if you don’t understand that Scalia is first and foremost a very conservative Catholic (member of the crazy Opus Dei cult) before all else, then you aren’t paying attention.Report

So sorry, James. I didn’t realize it was my job to entertain you. If you need entertainment to assuage your boredom, might I suggest Bravo TV. They have all those Real Housewife reality shows that many people find amusing. I don’t personally, but it might be to your taste.

Apparently you get bored easily when you don’t have anything to add to a conversation.I get that. I find that reading is always a good way to enrich my mind and learn something new. I’m happy to suggest a few books if you are looking to expand your knowledge.

I am a particular fan of Joan Didion and MFK Fisher. I’d highly recommend anything by either author.Report

Or is it just that I find your condescending tone abrasive and uncalled for?

If you want to have a substantive conversation, fine. I can do that. If you just want to trade barbs, fine, I can do that too.

Or are you boring me already? You keep telling me that I am boring you but you keep writing nasty comments to me. So not so bored are you, James? Don’t you have anything of weight to add to the conversation?Report

Again, I have any number if disagreements with Scalia. I’m not defending him. But if you think “Scalia is evil” is a substantive statement, rather than cheap rhetoric, then you’ve never learned what substantive discussion is.Report

But the fact of the matter is that process is important. And when process is followed, we ought to be able to trust the result. Otherwise, why have rules at all?

IIRC, there is a procedure called habeas corpus, in which the plaintiff’s burden of proof is preponderance, actual innocence is a typical and powerful path towards meeting that burden, and Justice Scalia suggested that the defendant in that case to bring his evidence of actual innocence in that proceeding. Maybe I’m thinking of a different case, because in the case I’m thinking of I don’t recall evidence that the defendant had a mental impairment.Report

Burt, I agree that process is important, but process isn’t everything. Sometimes the truth matters more than process. Look at all the wrongfully convicted people on death row who have been exonerated. Process was followed but the result wan’t good or trustworthy. If I were black, I’d hardly have much faith in judicial process. I’m a gay man, and I don’t have much faith in judicial process.

I’ll find the case I am referring to this evening. The man was black and had an IQ around 60, as did his co-defendant. The issue was that there was new information, DNA evidence not available at the original trial and subsequent appeals, but proved innocence (along with a confession from the actual killer also not available earlier). Scalia voted to ignore the new evidence and kill an innocent man because of … process. The man had made his appeals and lost and the process was followed and therefore the man had to be killed, even though he was innocent. Fuck truth, justice, mom, apple pie and the American way. Unless by American way you mean killing innocent black men.Report

Just a little more on why I think Scalia and Thomas (and perhaps others on the court) would have voted to uphold these convictions, and why it likely smart judicial politics for this not to get granted cert.

A little background might be needed to understand this. To start, the Court has held that the 6th amed. requires that criminals only be sentenced based on facts found by a jury BRD. The facts found correspond to a statutory sentence. If facts are found by a judge and lead to a sentence which violates the statutory scheme, then the persons 6th Amendment rights have been violated. There are two ways to violate the federal sentencing guidelines, one is to impose a sentence above the max, the other is to impose a sentence that is substantially unreasonable. The first of these is well established. The second–the issue in this case–is much more controversial.

Scalia dissented from the adoption of the substantially unreasonable test in Booker. And, while he voted to uphold it in Gill on stare decisis grounds, he is not a fan and would likely use this opportunity to hold that the Federal sentencing guidelines have no reasonableness standard, and, consequently, this sentence is constitutional.Report

Dude. So I just finished reading most all of the motions and amicus briefs. Yech. My eyes hurt. As near as I can figure the basic issue seems to turn on whether sentencing guidelines constitute law or mere suggestions. And that in turn would, I suppose, depend on how they’re written with some granting judges more or less flexibility than others.

I agree that Scalia wants to settle an issue he feels is currently less than adequately resolved but I disagree that he would likely side with the government here. He’s an originalist and this case has interesting sixth amendment implications.

And I think the majority is just running with stare decisis here.Report

My take is that Scalia does feel that the issue of whether an unreasonably long sentence imposed based on a judge found fact is not adequately resolved. But that he doesn’t think judges should be reviewing decisions under the sentencing guidelines for reasonableness.

So, if there was a majority that overturned, he would likely vote with them on stare decisis while writing a concurrence stating his opposition to the reasonableness standard. If he could get a majority to overturn that standard he would. And overturning that standard gets rid of this issue.

I guess what I’m saying is that I don’t think he would side with the government, but that he might not side with the petitioners either.Report

Religious Institutions. Religious institutions may resume services subject to the following conditions, which apply to churches, synagogues, temples, mosques, interfaith centers, and any other space, including rented space, where religious or faith gatherings are held: 1. Indoor religious gatherings are limited to no more than ten people. 2. Outdoor religious gatherings of up to 250 people are allowed. Outdoor services may be held on any outdoor space the religious institution owns, rents, or reserves for use. 3. All attendees at either indoor or outdoor services must maintain appropriate social distancing of six feet and wear face masks or facial coverings at all times. 4. There shall be no consumption of food or beverage of any kind before, during, or after religious services, including food or beverage that would typically be consumed as part of a religious service. 5. Collection plates or receptacles may not be passed to or between attendees. 6. There should be no hand shaking or other physical contact between congregants before, during, or after religious services. Attendees shall not congregate with other attendees on the property where religious services are being held before or after services. Family members or those who live in the same household or who attend a service together in the same vehicle may be closer than six feet apart but shall remain at least six feet apart from any other persons or family groups. 7. Singing is permitted, but not recommended. If singing takes place, only the choir or religious leaders may sing. Any person singing without a mask or facial covering must maintain a 12-foot distance from other persons, including religious leaders, other singers, or the congregation. 8. Outdoor or drive-in services may be conducted with attendees remaining in their vehicles. If utilizing parking lots for either holding for religious services or for parking for services held elsewhere on the premises, religious institutions shall ensure there is adequate parking available. 9. All high touch areas, (including benches, chairs, etc.) must be cleaned and decontaminated after every service. 10. Religious institutions are encouraged to follow the guidelines issued by Governor Hogan.

“There shall be no consumption of food or beverage of any kind before, during, or after religious services, including food or beverage that would typically be consumed as part of a religious service,” the order says in a section delineating norms and restrictions on religious services.

The consumption of the consecrated species at Mass, at least by the celebrant, is an integral part of the Eucharistic rite. Rules prohibiting even the celebrating priest from receiving the Eucharist would ban the licit celebration of Mass by any priest.

CNA asked the Howard County public affairs office to comment on how the rule aligns with First Amendment religious freedom and free exercise rights.

Howard County spokesman Scott Peterson told CNA in a statement that "Howard County has not fully implemented Phase 1 of Reopening. We continue to do an incremental rollout based on health and safety guidelines, analysis of data and metrics specific to Howard County and in consultation with our local Health Department."

"With this said," Peterson added, "we continue to get stakeholder feedback in order to fully reopen to Phase 1."

The executive order also limits attendance at indoor worship spaces to 10 people or fewer, limits outdoor services to 250 socially-distanced people wearing masks, forbids the passing of collection plates, and bans handshakes and physical contact between worshippers.

In contrast to the 10-person limit for churches, establishments listed in the order that do not host religious services are permitted to operate at 50% capacity.

In the early days of the Coronavirus epidemic, there were hopes that the disease could be treated with a compound called hydroxychloroquine (HCQ). HCQ is a long-established inexpensive medicine that is widely used to treat malaria. It also has uses for treating rheumatoid arthritis and lupus. There had been some indications that HCQ could treat SARS virus infections by attacking the spike proteins that coronaviruses use to latch onto cells and inject their genetic material. Initial small-scale studies of the drug on COVID-19 patients indicated some positive effect (in combination with the antibiotic azithromycin). President Trump, in March, promoted HCQ as a game-changer and is apparently taking it as a prophylaxis after potentially being exposed by White House staff.

Initial claims of the efficacy of this therapy were a perfect illustration of why we base decisions on scientific studies and not anecdotes. By late March, Twitter was filled with stories of "my cousin's mother's former roommate was on death's door and took this therapy and miraculously recovered". But such stories, even assuming they are true, mean nothing. With COVID-19, we know that seriously ill people reach an inflection point where they either recover or die. If they died while taking the HCQ regimen, we don't hear from them because...they died. And if they recover without taking it, we don't hear from them because...they didn't take it. Our simian brains have evolved to think that correlation is causation. But it isn't. If I sacrificed a goat in every COVID-19 patient's room, some of them would recover just by chance. That doesn't mean we should start a massive holocaust of caprines.

However, even putting aside anecdotes, there were good reasons to believe the HCQ regimen might work. And given the seriousness of this disease and the desperation of those trying to save lives, it's understandable that doctors began using it for critically ill patients and scientists began researching its efficacy.

Why Trump became fixated on it is equally understandable. Trump has been looking for a quick fix to this crisis since Day One. Denial failed. Closing off (some) travel to China failed. A vaccine is months if not years away. So HCQ offered him what he wanted -- a way to fix this problem without the hard work, tough choices and sacrifice of stay-at-home orders, masks, isolation and quarantine. So eager were they to adopt the quick fix, the Administration made plans to distribute millions of doses of this unproven drug in lieu of taking more concrete steps to address the crisis.[efn_note]Although the claim that Trump stands to profit off HCQ sales does not appear to hold much water.[/efn_note]

This is also why certain fringe corners of the internet became fixated on it. There has arisen a subset of the COVID Truthers that I'm calling HCQ Truthers: people who believe that HCQ isn't just something that may save some lives but is, in fact, a miracle cure that it's only being held back so that...well, take your pick. So that Democrats can wreck the economy. So that Bill Gates can inject us with tracking devices. So that we can clear off the Social Security rolls. And this isn't just a US phenomenon nor is it all about Trump. Overseas friends tell me that COVID trutherism in general and HCQ trutherism in particular have arisen all over the Western World.

It's no accident that the HCQ Truthers seem to share a great deal of headspace with the anti-Vaxxers. It fills the same needs

In both cases, the idea was started by flawed studies. The initial studies out of China and France that indicated HCQ worked were heavily criticized for methodological errors (although note that neither claimed it was a miracle cure). Since then, larger studies have shown no effect.

HCQ trutherism offers an explanation for tragedy beyond the random cruelty of nature. Just as anti-vaxxers don't want to believe that sometimes autism just happens, HCQ Truthers don't want to believe that sometimes nature just releases awful epidemics on us. It's more comforting, in some ways, to think that bad happenings are all part of a plan by shadowy forces.

There is, however, another crazy side that doesn't get as much attention because their crazy is a bit more subtle. These are the people who have decided that, since Trump is touting the HCQ treatment, it must not work. It can not work. It can not be allowed to work. There is an undisguised glee when studies show that HCQ does not work and a willingness to blame HCQ shortages on Trump and only Trump.[efn_note]Not to mention the odd fish tank cleaner poisoning that has nothing to do with him.[/efn_note]

In between the two camps are everyone else: scientists, doctors and ordinary folk who just want to know whether this thing works or not, politics and conspiracy theories be damned. Well, last week, we got a big indication that it does not. A massive study out of the Lancet concluded that the HCQ regimen has no measurable positive effect. In fact, death rates were higher for those who took the regimen, likely due to heart arrhythmias induced by the drug.

So is the debate over? Can we move on from HCQ? Not quite.

First of all, the study is a retrospective study, looking backward at nearly 100,000 cases over the last four months. That's a massive sample that allows one to correct for potential confounding factors. But it's not a double-blind trial, so there may be certain biases that can not be avoided. In response to the publication, a group doing a controlled study unblinded some of their data (that is, they let an independent group look up who was getting the actual HCQ and who was getting a placebo). It did not show enough of a safety concern to warrant ending the study.

It's also worth noting that because this is an unproven therapy, it is usually being used on only the sickest patients (the odd President of the United States aside). It's possible earlier use of the drug, when the body is not already at war with itself, could help.

With those caveats in mind, however, this study at least makes it clear that HCQ is not the miracle cure some fringe corners of the internet are pretending it is. And it should make doctors hesitant in giving to people who already have heart issues.

As you can imagine, this has only fed the twin camps of derangement. The truther arguments tend to fall into the usual holes that truther theories do:

"How can this be a four-month study when we only learned about COVID in January!" The HCQ protocol started being used almost immediately because of previous research on coronaviruses.

"How come all of the sudden this safe medicine that people use all the time is dangerous?!" The side effects of HCQ have been well known for years and have always required consideration and management. They may be showing up more strongly here because it is being given to patients whose bodies are already under extreme stress. Also, azithromycin may amplify some of those side effects.

"They just hate Trump." Not everything is about Donald Trump. If it turned out that kissing Donald Trump's giant orange backside cured COVID, scientists would be the first ones telling people to line up and use chapstick.

The other camp's response has ranged from undisguised glee -- that is, joy at the idea that we won't be saving lives cheaply -- to bizarre claims that Trump should be charged with crimes for touting this unproven therapy.

(A perfect illustration of the dementia: former FDA Head Scott Gottlieb -- who has been a Godsend for objective analysis during the pandemic -- tweeted out the results of the RECOVERY unblinding yesterday morning and noted that it showed no increased safety risk. He was immediately dogpiled by one side insisting he was trying to conceal the miracle cure of HCQ and the other insisting he is a Trumpist doing the Orange Man's dirty work.)

In the end, the lunatics do not matter. Whether HCQ works or not, whether it is used or not, will be mostly determined by doctors and will mostly be based on the evidence we have in front of us. If HCQ fails -- and it's not looking good -- my only response will be massive disappointment. Had HCQ worked, it would have been a gift from the heavens. It is a well-known, well-studied drug that can be manufactured cheaply in bulk. Had it worked, we could have saved thousands of lives, prevented hundreds of thousands of long-term injuries and saved trillions of dollars. That it doesn't appear to work -- certainly not miraculously -- is not entirely unexpected but is also a tragedy.

{C1} The Christian Science Monitor looks at 1918 and how sports handled that pandemic, and the role it played in giving rise to college football.

"That's really what started the big boom of college football in the 1920s," said Jeremy Swick, historian at the College Football Hall of Fame. "People were ready. They were back from war. They wanted to play football again. There weren't as many restrictions about going out. You could enroll back in school pretty easily. You see a great level of talent come back into the atmosphere. There's new money. It started to get to the roar of the Roaring '20s and that's when you see the stadiums arm race. Who can build the biggest and baddest stadium?"

{C2} During times of rapid change, social science is supposed to be able to help lead the way or at least decipher what is going on. Or maybe not...

But while Willer, Van Bavel, and their colleagues were putting together their paper, another team of researchers put together their own, entirely opposite, call to arms: a plea, in the face of an avalanche of behavioral science research on COVID-19, for psychology researchers to have some humility. This paper—currently published online in draft format and seeding avid debates on social media—argues that much of psychological research is nowhere near the point of being ready to help in a crisis. Instead, it sketches out an “evidence readiness” framework to help people determine when the field will be.

{C3} There is a related story about AI - which is predisposed towards tracking slow change over time - is having trouble keeping up.

{C4} The Covid-19 does not bode well for higher education is not news. They may have a lot of difficulty opening up (and maybe shouldn't). An added wrinkle is kids taking a gap year, which is potentially a problem because those most able to pay may be least likely to attend.

{C5} People who can see the faults with abstinence only education fail to see how that logic (We shouldn't give guidance to people doing things we would rather they not do in the first place). Emily Oster argues that the extreme message of public health advocates to Just Stay Home is counterproductive.

When people are advised that one very difficult behavior is safe, and (implicitly or not) that everything else is risky, they may crack under the pressure, or throw up their hands. That is, if people think all activities (other than staying home) are equally risky, they figure they might as well do those that are more fun. If taking a walk at a six-foot distance from a friend puts me at very high risk, why not just have that friend and a bunch of others over for a barbecue? It’s more fun. This is an exaggeration, of course, but different activities carry very different risks, and conscientious civic leaders should actively help people choose among them.

{C6} A look at what canceling the football season will do to the little guys - non-power schools. Ironically, they may sustain less damage due to fewer financial obligations relying on the money that won't be coming in. Be that as it may, Fordham has disestablished its baseball program.

{C7} Bans on evictions and rental spikes could have the main effect of simply pushing out small investors, rather than protecting renters. In a more good-faith economy this would be less of an issue because landlords would work with tenants. Which some are, though I don't have too much faith about it being widespread.

{C8} Three cheers for Nick Saban. Football coaches are cultural leaders of a sort. One is about to become a senator in Alabama, even. What they do matters.

The American college experience for better or for worse revolves around the residency factor. We have turned college into a relatively safe place for young adults to the test the limits of freedom without suffering too many consequences. Better to miss a day of classes because you drank too much than to miss a day of an apprenticeship or job and get fired. College was cut short this semester because of COVID and colleges are freaking out about whether they can open up dorms in the fall. The dorms are big money makers and it is hard to justify huge tuition bucks for zoom lectures even for elite universities. Maybe especially for them. California State University announced that Fall 2020 is going to be largely online. My undergrad alma mater sent out an e-mail blast announcing their plan to reopen in the fall with "mostly" in person classes. The President admitted that the plan was a work in progress but it strikes me as a combination of common sense and extreme wishful thinking. The plan may include:

1. Staggered drop-off days to limit density as we return.

This sounds reasonable but only in a temporary way because eventually everyone will be back on campus, living in dorm rooms together, needing to use communal bathrooms and showers.

2. Students would be tested for COVID-19 on campus at least twice in the first 14 days.

There is nothing wrong with this as long as the testing is available. Our capacity for testing so far in this country has not been great.

3. Anyone experiencing symptoms would be tested immediately. Students who test positive would be cared for in a separate dormitory area where food would be brought to the room and where the student could still access classes remotely.

Nothing wrong here. Outbreaks of certain diseases are not unknown in the college setting. During my senior year, there was an outbreak of a rather nasty strain of gastroenteritis. Other universities have experienced meningitis outbreaks.

4. All students would take their temperature and report symptoms daily.

This one is also reasonable but is going to involve spying on students and coming up with a punishment mechanism. How will they make sure students are not lying?

5. We would also require that socializing be kept to a minimum in the beginning, with proper PPE (masks) and social distancing. As time went on, we would seek to open up more, and students could socialize and eat together in small groups.

I have no idea how they tend for this to happen and it sets of all my lawyer bells for carefully crafted language that attempts to answer a concern or question but also admits "we got nothing." Maybe today's students are more somber and sincere but you are going to have around 500 eighteen year olds who are away from their parents for the first time and another 1500 nineteen to twenty-one year olds who had their semester rudely interrupted and might now be reunited with boyfriends and girlfriends. Are they going to assign eating times for the dining hall and put up solo eating cubicles that get wiped down and disinfected after each use? Assign times to use laundry facilities in each dorm? Cancel the clubs? Cancel performances by the theatre, dance, and music departments?

I am sympathetic to my alma I love it but and realize that a lot of colleges and universities would take a real hit financially without residency. This includes universities with reasonable to very large endowments. Only the ones with hedge fund size endowments would not suffer but the last part of the plain sounds not fully thought out yet even if my college's current President admitted: "Life on campus will not look the same as it did pre-pandemic" The only way i see number 5 working is if requiring is read as "requiring."

Seems that the theory that Covid-19 can be spread by asymptomatic people has very shaky evidence in support of it. Turns out the case this assumption was made from was based on a single woman who infected 4 others. Researchers talked to the 4 patients, and they all said the patient 0 did not appear ill, but they could not speak to patient 0 at the time.

So they finally got to talk to her, and she said she was feeling ill, but powered through with the aid of modern pharmaceuticals.

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Today we couldn’t be happier to announce that Vox Media and New York Media are merging to create the leading independent modern media company. Our combined business will be called Vox Media and will serve hundreds of millions of audience members wherever they prefer to enjoy our work.

In a nation in turmoil, it's nice to have even a small bit of good news:

Representative Steve King of Iowa, the nine-term Republican with a history of racist comments who only recently became a party pariah, lost his bid for renomination early Wednesday, one of the biggest defeats of the 2020 primary season in any state.

In a five-way primary, Mr. King was defeated by Randy Feenstra, a state senator, who had the backing of mainstream state and national Republicans who found Mr. King an embarrassment and, crucially, a threat to a safe Republican seat if he were on the ballot in November.

The defeat was most likely the final political blow to one of the nation’s most divisive elected officials, whose insults of undocumented immigrants foretold the messaging of President Trump, and whose flirtations with extremism led him far from rural Iowa, to meetings with anti-Muslim crusaders in Europe and an endorsement of a Toronto mayoral candidate with neo-Nazi ties.

King, you may remember, was stripped of his committee assignments last year when he defended white supremacism. Two years ago, he almost lost his Congressional seat in the general. That is, a seat that Republicans have held since 1986, usually win by double digits and a district Trump carried by a whopping 27 points almost came within a point or two of voting in a Democrat. That's how repulsive King had gotten.

Good riddance to bad rubbish. Enjoy retirement, Congressman. Oops. Sorry. In January, it will be former Congressman.

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From the Daily Mail: Deadliest city in America plans to disband its entire police force and fire 270 cops to deal with budget crunch

The deadliest city in America is disbanding its entire police force and firing 270 cops in an effort to deal with a massive budget crunch.

...

The police union says the force, which will not be unionized, is simply a union-busting move that is meant to get out of contracts with current employees. Any city officers that are hired to the county force will lose the benefits they had on the unionized force.

Oak Park police say they are investigating “suspicious circumstances” after two attorneys — including one who served as a hearing officer in several high-profile Chicago police misconduct cases — were found dead in their home in the western suburb Monday night.

Officers were called about 7:30 p.m. for a well-being check inside a home in the 500 block of Fair Oaks Avenue, near Chicago Avenue, and found the couple dead inside, Oak Park spokesman David Powers said in an emailed statement. Authorities later identified them as Thomas E. Johnson, 69, and Leslie Ann Jones, 67, husband and wife attorneys who worked in Chicago.

The preliminary report from an independent autopsy ordered by George Floyd's family says the 46 year old man's death was "caused by asphyxia due to neck and back compression that led to a lack of blood flow to the brain".

The independent examiners found that weight on the back, handcuffs and positioning were contributory factors because they impaired the ability of Floyd's diaphragm to function, according to the report.

Dr. Michael Baden and the University of Michigan Medical School's director of autopsy and forensic services, Dr. Allecia Wilson, handled the examination, according to family attorney Ben Crump.

Baden, who was New York's medical examiner in 1978 and 1979, had previously performed independent autopsies on Eric Garner, who was killed by a police officer in Staten Island, New York, in 2014 and Michael Brown, who was shot by officers in Ferguson, Missouri, that same year.

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Oddly, the video was dropped by an attorney friend the men, because he thought it would exonerate them. He assumed when people saw Aubrey turn and try to defend himself, everyone would see what they did: a dangerous animal needing to be put down.